Non-compliance with court orders

The Commission’s recommended reforms

5.60We have reconsidered the options put forward in the Issues Paper in light of the matters raised by submitters. We have decided not to proceed with the offence in option 1 and recommend instead a variant of option 2.

5.61We agree that the party in whose favour the court makes an order should retain the ability to enforce that order through the ultimate sanction of contempt, because without contempt the party would not have adequate civil enforcement remedies. We agree with submitters that prosecuting an offence does not give the party an effective remedy. Currently, the beneficiary of the original court order can bring an action for contempt and we consider this should remain the case. We therefore recommend enacting a statutory form of contempt for responding to breaches of court orders, rather than a criminal offence. The opportunity should also be taken to replace the anachronistic language of contempt in the new Act. The proposed clauses in subpart 5 of Part 2 of the draft Bill deliberately avoid the language of contempt.

5.62We recommend that the new statutory provisions should replace the common law entirely in respect of contempt involving a breach of, or failure to comply with, a court order. Under the new clauses, the litigant who obtained the court order may apply to the relevant court for an order that a person who has not complied with the court order be punished for non-compliance. The Solicitor-General should also be able to bring proceedings, as is the current practice. We would expect this would only occur, as now, in exceptional cases and the parties would normally take steps to enforce compliance with their own court orders. In cases involving high-impact, deliberate, widely publicised and repeated breaches, such as occurred in the first Siemer case,448 the Solicitor-General, in her capacity as a Law Officer of the Crown, should retain the ability to make an application. We have discussed this approach with the Solicitor-General who agrees with it. We are not recommending the courts should be able to initiate this form of contempt. As it is not contempt in the courtroom, we consider some independent assessment and an application to the court are necessary preliminary steps.

5.63We recommend the new enforcement procedure should not be available to enforce breaches of orders requiring the payment of a sum of money under a court judgment or relating to the recovery of land. In this respect, the new provision would enact the current law under which contempt is not available to enforce a money judgment. We are not suggesting any return to debtor prisons.449 The District Court Act, District Court Rules and High Court Rules provide other enforcement mechanisms for recovery of land or for obtaining money owed under a court order.450

5.64We do, however, recommend the new enforcement procedure should apply to suppression orders made in criminal proceedings under the inherent authority or implied powers of the courts.451 This would create consistency between the enforcement of court orders in civil and criminal proceedings.

5.65Clause 22(1) of the draft Bill identifies court orders for the purposes of the new provision. It covers any court order that requires a person to do, or abstain from doing, something that does not involve paying a sum of money under a judgment. Orders for the recovery of land are also excluded. The definition includes any undertaking given to the court where, in reliance on the undertaking, the court has sanctioned a particular course of action or inaction. The relevant court in which the proceedings would be brought would be defined as the court in which the applicable court order was made or any court to which the proceedings have been transferred for enforcement or any court of appeal hearing an appeal in respect of the proceedings. The new provision would clarify that the District Court, and those other courts that take jurisdiction under the District Court Act, have full jurisdiction under the provisions.

5.66Clause 22(4) of the Bill specifies the elements that must be proved to the standard of beyond reasonable doubt before the court will make an enforcement order, which are:

the applicable court order was made in clear and unambiguous terms and is binding on the person;

the person was given proper notice of the terms of the court order; and

the person has, without reasonable excuse, intentionally failed to comply with the applicable court order.

5.67The maximum penalty should be set at an appropriate level, consistent with other forms of contempt. The maximum penalty should be the same irrespective of which court’s order has been breached, and irrespective of whether enforcement is being undertaken in the District Court or the High Court. We recommend a maximum penalty of six months’ imprisonment and a maximum fine of $25,000. The discussion around how we have set penalty levels is found in chapter 7.452

5.68The Sentencing Act should apply in respect of any sentence the court imposes under the new provision, as if the person had been convicted of an offence. We consider that the methodology and principles in the Sentencing Act should apply when the courts determine the penalty under the new provision, and the community-based sentences provided for in the Act should also be available to the court.

5.69In determining the appropriate penalty, the court should consider the nature and gravity of the non-compliance or breach and should consider any relevant mitigating or aggravating factors relating to the person. In Blomfield v Slater,Asher J, when considering the appropriate punishment for a contempt involving a breach of an undertaking, noted:453

[A]s with all sentencing exercises the objective seriousness of the relevant conduct and the defendant’s personal culpability for the conduct must be assessed. In accordance with ordinary sentencing principles a defendant’s means and any personal aggravating or mitigating factors will be taken into account.

Where breach of a court order involves an element of public defiance of the court’s process in a way calculated to lessen respect for the court, the court may well consider imprisonment to be appropriate. Nothing in the new provision should limit the court’s ability to make any other order it has jurisdiction to make either under any Act, the rules of Court or its inherent authority or implied powers.

5.70Appeals against any finding that a person is in contempt under the new provision or against the sentence imposed could be heard under Part 6, subpart 5 (sections 260 to 269) of the Criminal Procedure Act 2011. Parliament enacted these provisions to provide for appeals where a court finds a person guilty of a criminal contempt of court, whether at common law or under statute.

5.71We have also concluded that the remedy of sequestration should remain because, while rarely used, it is still necessary as a remedy of last resort. Sequestration orders against the property of a person who has failed to comply with a court order should continue to be available as a remedy in proceedings under the new provisions in the High Court.

Corporate defendants: personal liability on directors?

5.72Rather than having a higher level of fine for corporate defendants, the Issues Paper suggested courts could impose liability directly on the directors. This was because currently when a court makes a judgment or order against a corporate body, it can be enforced by an order of committal for contempt against the directors or other officers of the corporate body.454 We recommend the new provisions reflect this approach, and where a company or incorporated society has failed to comply with an applicable court order, the relevant court may make an order finding its directors or officers in breach and sentence them under the provision. As noted earlier, sequestration orders can also be used in cases where a corporate body has disobeyed an order.455

5.73Finally, our recommended reforms will improve consistency between breaches of suppression orders that are offences under the Criminal Procedure Act and suppression orders made under inherent authority or implied powers. As discussed earlier in [5.40] to [5.41], the current position is that suppression orders in criminal proceedings are enforced by a mixture of offence provisions456 and the law of contempt, and in civil proceedings suppression orders are enforced by the law of contempt. The maximum penalty for a breach of an order made under the Criminal Procedure Act is six months’ imprisonment, while the maximum sentence for a breach of a suppression order made in the High Court under inherent powers is up to two years’ imprisonment.457

5.74Our recommendations will bring these maximum penalties into line. The new statutory enforcement provisions we have recommended will replace the common law of contempt and will be available to enforce suppression orders.

recommendations

R32 New statutory provisions should be enacted to replace the common law in respect of contempt involving a breach of or failure to comply with an applicable court order.

R33 Under the new provisions, a person who has obtained an applicable court order may apply to the court for an order that the other party has failed to comply with the order.

R34 Under the new provisions, the Solicitor-General should have discretion to apply to the courts for an order that a person has failed to comply with an applicable court order.

R35 For the purposes of the new provisions, an applicable court order means, whether or not the order is in a judgment, a court order to do or abstain from doing something that is not paying a sum of money or any undertaking given to the court where, on the faith of that undertaking, the court has sanctioned a particular course of action or inaction. Orders for the recovery of land should also be excluded. The relevant court would be the court in which the applicable court order was made or any court to which the proceedings have been transferred for enforcement, or any court of appeal hearing an appeal in respect of the proceedings.

R36 The court may make an order finding the person has failed to comply with an applicable court order if satisfied beyond reasonable doubt that:

(a) the applicable court order has been made in clear and unambiguous terms and is binding on the person;

(b) the person has knowledge or proper notice of the terms of the court order being enforced; and

(c) the person has, without reasonable excuse, intentionally failed to comply with the applicable court order.

R37 Where the person who has failed to comply with the applicable court order is a company or incorporated society the court may make an order finding any director or officer of the company or incorporated society has failed to comply with an applicable court order under R36.

R38 On making a finding that a person has failed to comply with an applicable court order, the court may sentence the person to:

(a) a term of imprisonment not exceeding 6 months; or

(b) a fine not exceeding $25,000.

R39 On making a finding that a person has failed to comply with an applicable court order, the High Court may issue a sequestration order against the property of the non-complying party.

R40 The Sentencing Act 2002 should apply in respect of any sentence imposed by the court under the new provision as if the person had been convicted of an offence.

R41 Appeals against any finding that a person has failed to comply with an applicable court order under the new provision should be heard under subpart 5 of Part 6 (sections 260 to 269) of the Criminal Procedure Act 2011.

456It is an offence under section 211 of the Criminal Procedure Act 2011 for anyone to publish information in breach of a suppression order made under that Act. Where a person intentionally or recklessly breaches a suppression order made under the Criminal Procedure Act they face a maximum penalty of up to six months’ imprisonment.